GOVINDA NAICKEN Vs. APATHSAHAYA IYER ALIAS AIYAVAIYER

JUDGEMENT

(1.) The suit was brought for specific performance of a contract to sell certain lands. Although the agreement to sell was executed by the defendant alone, it was stated in the document that the lands were being enjoyed in equal shares by the defendant and the defendant s divided elder brother, and that they had been purchased out of money belonging to them severally. The defendant agreed to have the proposed sale-deed executed by himself and by his brother on his own account and as guardian of his minor son.

(2.) The District Munsif found (1) that both parties knew full well at the time of execution of the agreement to sell (Exhibit A.) that one-half of the land belonged to Ramasamier and his son, and (2) that the agreement fell through owing to the default of both parties. Referring to illustration (a) to Section 15 of the Specific Relief Act and to Section 17, he decided that this was not a case in which specific performance of a part of the contract could be enforced, inasmuch as the defendant was not competent to transfer the half to which he did not possess a title, and as the plaintiff made no offer to purchase the defendant s own half paying the price agreed upon and waiving all right to compensation for deficiency or for loss. The District Judge did not agree with the District Munsif upon this point. He was unable to see that there was anything to debar the plaintiff from asking for a sale-deed for the whole "land to be executed in his favour by the defendant as stipulated in Exhibit A, the plaintiff being allowed to take the document for what it was worth. The District Judge farther remarked that he found no reason for declaring the agreement unenforceable on general grounds. He declined, however, to give the plaintiff a decree on account of his delay of three years in instituting the suit.

(3.) In a case of minors, when a suit was brought for specific performance of a contract of sale and the contract was found to be not binding on the minors, this Court, in Ponaka Subbarani Reddy v. Vadlamudi Seshachalam Chetty 33 M. 359 : 7 M.L.T. 137 : 20 M.L.J. 328 : 5 Ind. Cas.79 observed: If the contract is indivisible under Section 17 of the Act, what then is the relief to which the plaintiff is entitled? We are asked by the appellant to give him a decree for the whole against the first and fourth defendants on the authority of Srinivasa Reddi v. Sivrama Reddi 32 M. 320 : 4 Ind. Cas. 506. This we are unable to do.